AUSTIN, Texas (Legal Newsline) – Texas Attorney General Ken Paxton is appealing a federal court’s injunction that prevents a new law targeting the way Facebook and Twitter bans users from taking effect.
On Dec. 6, Paxton filed his notice of appeal in Austin federal court of Judge Robert Pitman’s decision to block HB 20, which requires the social media giants to establish guidelines for banning users that are applied without bias. The case will move to the U.S. Court of Appeals for the Fifth Circuit.
Conservative groups like The Babylon Bee say Facebook and Twitter go out of their way to silence users when they don’t agree with them. Plaintiffs NetChoice and the Computer & Communications Industry Association say the law is unconstitutional.
The lawsuit follows a similar effort in Florida, where the plaintiffs have also obtained a preliminary injunction against a new law. Pitman said the Texas lawsuit shows a likelihood of success.
“This Court is convinced that social media platforms, or at least those covered by HB 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content,” Pitman wrote.
“Without editorial discretion, social media platforms could not skew their platforms ideologically, as the State accuses of them of doing. Taking it all together, case law, HB 20’s text, and the Governor and state legislators’ own statements all acknowledge that social media platforms exercise some form of editorial discretion, whether or not the State agrees with how that discretion is exercised.”
The law would compel social media companies to disseminate “objectionable content,” Pitman ruled, and requiring them to disclose their operations puts a burden on their editorial discretion.
“The consequences of noncompliance also chill the social media platforms’ speech and application of their content moderation policies and user agreements,” Pitman wrote.
“Noncompliance can subject social media platforms to serious consequences. The Texas Attorney General may seek injunctive relief and collect attorney’s fees and ‘reasonable investigative costs’ if successful in obtaining injunctive relief.”
Paxton is the defendant in the lawsuit and has a history of confrontation with Twitter.
He issued a civil investigative demand to Twitter after it banned President Donald Trump following the Jan. 6 assault on the U.S. Capitol. Paxton sought documents relating to what he felt were possible violations of his state’s Deceptive Trade Practices Act in regard to what it allows to be posted.
Twitter’s response was to sue Paxton in California federal court in an attempt to stifle his CID. Judge Maxine Chesney ruled for Paxton in May, declaring Twitter’s suit premature. The company has appealed to the U.S. Court of Appeals for the Ninth Circuit.
According to Twitter’s lawsuit, Paxton has a long history of complaints with social media/big tech companies, including accusing them of censoring or stifling conservative voices and opinions on the platform and internet.
Paxton complained on Fox News about Twitter censoring false or misleading content regarding election and voting practices in May of last year, and called the platform "politically biased," the suit says.
In September 2020, Paxton filed a comment with the Federal Communications Commission urging the FCC to construe a provision of federal law after Twitter continued to censor false and misleading tweets from former president Donald Trump, the suit says.
Twitter says that Trump's inappropriate tweets increased in frequency after the November 2020 election, until he spoke to a crowd in January of this year where he continued to insist the election was stolen, and encouraged the crowd to march to the Capitol Building, to "fight like hell. And if you don't fight like hell, you're not going to have a country anymore."
After Trump was permanently suspended from Twitter, Paxton tweeted that he would "fight [Twitter] with all he's got."
Elsewhere, the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union Foundation of Texas filed a lawsuit in April that says Paxton violates the Constitutional rights of Twitter users when he blocks them.
Other plaintiffs range from journalists to project managers to students to campaign managers to attorneys, all of whom have criticized Ken Paxton for issues including his policies and his federal fraud indictments and were consequentially blocked from viewing his Twitter account.
The plaintiffs accuse Paxton of unconstitutionally blocking people from his official Twitter account and official statements after they criticized him or his policies. The plaintiffs argue that the First and Fourteenth amendments protect their rights to participate in a public forum with a government official and that viewpoint-based restriction on the plaintiff's ability to petition the government for redress of grievances has been imposed.